Singh-Heer v RSK Farming Limited

[2023] NZHC 3126

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000088

[2023] NZHC 3126

BETWEEN

BALBIR SINGH-HEER and DABAU MINDHRO KAUR SINGH-HEER

Plaintiffs

AND

RSK FARMING LIMITED

Defendant

Hearing:

On the papers

Appearances:

Plaintiffs in Person

F King for the Defendant

Judgment:

26 October 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

[Costs]

This judgment was delivered by me on 26 October 2023 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

McKenna King Dempster, Hamilton

KAUR v RSK FARMING LIMITED [2023] NZHC 3126 [26 October 2023]

[1]                 On 15 September 2023, I gave judgment in favour of the defendant, dismissing the plaintiff’s application for summary judgment.

[2]                 In NZI Bank v Philpott, the Court of Appeal confirmed the approach to costs where a plaintiff fails with an application for summary judgment:1

As with most questions of costs, they should be approached on broad principles. Whilst a defendant may be regarded as successful in one sense in resisting an application for summary judgment, it is of course not a final determination in the proceeding itself. If ultimately the plaintiff does succeed it seems to us in the general run of cases that the defendant should pay for both proceedings, the Court paying particular attention to the reasons why the plaintiff was unsuccessful in the first case. If those reasons include some question of fault on the part of the plaintiff then it may be appropriate to reduce or even eliminate an entitlement to costs for that part of the proceedings so far as the plaintiff is concerned. Where, however, the defendant has raised defences which cannot by their nature be resolved at a summary judgment application but ultimately turn out to have no basis, then costs on both sets of proceedings belong to the plaintiff.

[3]                 In most cases, the incidence of costs is best settled when the result of the litigation is known. However, there may be cases where a plaintiff has applied for summary judgment where the rules do not permit it, or in the certain knowledge that there is a question of fact or law which can only be determined at trial. In those cases it may be appropriate for the Court to award costs to the defendant.2

[4]                 The Court of Appeal characterised these cases as exceptional, involving abuses of the procedure.3 I reject the submission that the plaintiff brought these proceedings unreasonably, or with knowledge of their certain failure, or by way of an experiment.

[5]The defendants submits that this case is exceptional because:

(a)the application was brought in the context of a related dispute between Sarbjit Kaur and Rupinder Singh-Heer, including a claim by Sarbjit Kaur in respect of the conduct of the affairs of the defendant in this proceeding, under s 174 of the Companies Act 1993;

1      NZI Bank v Philpott [1990] 2 NZLR 403 [Court of Appeal] at [405].

2      Above.

3 Above at [407].

(b)my comment in the judgment that Mr and Mrs Singh-Heer were seeking to exercise their contractual rights against the defendant to advantage their son, Rupinder, in his negotiations with Sarbjit;

(c)Mr and Mrs Singh-Heer were on notice of significant factual disputes, being the factual basis of the equitable defences advanced by Sarbjit Kaur on behalf of RSK.

[6]                 The first two grounds are related. Mr and Mrs Singh-Heer were seeking to enforce contractual rights in the context of a dispute between their son and Sarbjit Kaur following their separation. A party seeking to enforce contractual rights can be motivated by a wide array of factors. Motivation is irrelevant to the existence of exceptional circumstances amounting to an abuse of procedure, entitling a defendant to costs on a failed application for summary judgment.

[7]                 In the present case, the defendant relies on equitable defences. Although I have determined that the defendant’s claim of undue influence is arguable, it remains to be seen whether the defence will be established at trial. This is not one of those cases where the facts were sufficiently clear, and so weighted in the defendant’s favour, as to render the application for summary judgment hopeless. There is nothing about this case that takes it outside of the usual run of cases where a plaintiff fails to discharge the onus upon it to establish that factual defences cannot succeed. This case is not exceptional.

[8]Accordingly, costs are reserved.

Associate Judge Brittain